Sticks and stones
May break my bones
But words will never hurt me
As many commentators have opined, including myself, Angela Corey’s probable cause affidavit to support a charge of Second Degree Murder is not only a stretch, but extremely lacking in objective facts.
Boiled down to its essential elements, the probable cause affidavit reads:
- “Trayvon Martin was on his way back to a townhouse where he was living when he was profiled by George Zimmerman.”
- Zimmerman called the non-emergency police number and pursued Martin.
- When the dispatcher realized Zimmerman was pursing Martin, he instructed Zimmerman “not to do that and an officer would meet him.”
- “Martin attempted to run home, but was followed by Zimmerman.”
- “Zimmerman confronted Martin and a struggle ensued.”
- “Martin died from a gunshot wound.”
As was highlighted by Zimmerman’s attorney, Mark O’Mara, the prosecution engaged in selective word use when drafting their probable cause affidavit.
Where followed would have been appropriate, they used “pursued.” Where approached could have been used, they used “confronted.”
Which begs the question; why? Why did Angela Corey elect to use such specific language in the probable cause affidavit?
The answer is quite simple, in order to survive the inevitable Motion to Dismiss based upon Self Defense that will be filed by George Zimmerman’s attorney, she must convince the judge that Zimmerman was the “First Aggressor.”
The First Aggressor Rule
The First Aggressor Rule is a rather simple common law rule that says “a defendant who provokes an encounter as a result of which he finds it necessary to use deadly force to defend himself, is guilty of an unlawful homicide and cannot claim that he acted in self-defense.” Wharton’s Criminal Law, Sec. 136 Provocation by Defendant. See also Wallace v. United States, 162 US 466 (1896).
Florida has codified the First Aggressor Rule into Florida Statute 776.041(2) (Use of force by aggressor), which states: “The justification [to use self defense] is not available to a person who initially provokes the use of force against himself or herself.”
So if George Zimmerman is to be the aggressor, and thus forfeit his right to self defense, it must be shown that he “provoked” Trayvon Martin to attack him in someway.
This begs the question though, what would constitute sufficient provocation by George Zimmerman such that he would forfeit right to self-defense?
According to Wharton’s Criminal Law treatise, an encounter is provoked, thereby branding the defendant as an aggressor and stripping him of his right to self-defense, where the defendant:
- Assaulted the deceased;
- Unlawfully arrested the deceased;
- Fires the first shot in a standoff;
- Leaves a fight, only to return with a weapon; and
- Is caught sleeping with the deceased’s wife.
On the other hand, Wharton’s Criminal Law states that a defendant does not become an aggressor where the defendant:
- Demands an explanation of offensive words or conduct;
- Discusses settlement of a claim;
- Discusses a sensitive subject;
- Hurls inappropriate language and insulting epithets;
- Engages in an inconsiderate act;
- Travels near a neighbor who has previously threatened him;
- Arms himself to repel an anticipated attack, while going about normal business;
- Provides an opportunity for conflict, but does not cause it; and
- Arms himself with the intent to cause a conflict with the deceased, but does not perform an act manifesting his subjective intent to cause the conflict.
This line of reasoning was followed in Gibbs v. State, 789 So. 2d 443 (Fla. 4th DCA 2001), which held that merely complaining to someone does not constitute provocation, rather the defendant’s provocation must be done “by force or the threat of force.”
Legally, who was the Aggressor?
With examples of sufficient and insufficient provocation as a backdrop, the question turns to what evidence does the State have that George Zimmerman legally provoked the altercation between he and Trayvon Martin?
Noticeably absent from the Probable Cause affidavit was any evidence of who provoked the fight; but we do know that George Zimmerman claims that it was Trayvon Martin who not only followed him back to his car, but who also threw the first punch. If that is true, or goes un-rebutted by the State, then Trayvon Martin was clearly the first aggressor as a matter of law.
And while we have not had an opportunity to review George Zimmerman’s statement in its entirety, based upon what we do know, there does not appear to be any evidence that would contradict his account of Trayvon Martin throwing the first punch.
Thus there would seem to be no evidence that George Zimmerman legally provoked the fight. And if he did not legally provoke the fight, then he cannot be considered the First Aggressor.
Assuming George was the First Aggressor
Although it is my opinion that there is no evidence to support the conclusion that George Zimmerman was the aggressor as a matter of law. Let’s assume for the minute that Trayvon Martin was lawfully defending himself because he was provoked by George Zimmerman’s “pursuing” of him; the questions then need to be asked:
- Did George Zimmerman forfeit his right to self defense entirely; and
- Could Trayvon Martin respond with disproportional force to the initial “confrontation.”
The answer to both of these question is No. George Zimmerman did not forfeit his right to defend himself entirely and Trayvon Martin could not resort to Deadly Force simply because he was being “pursued” or was subsequently “confronted” by George Zimmerman.
Disproportionate Force Exception
Codified in Florida Statute 776.041(2)(a), the “Disproportionate Force” exception qualifies “The First Aggressor Rule” and provides limited circumstances by which an initial aggressor’s right to self defense is restored.
The exception holds that even if a defendant “initially provokes the use of force against himself” if the response is disproportionate to the initial provocation, then the defendant’s right to self defense is restored.
More importantly, he can resort to deadly force if he has no means of escape and reasonably believes that deadly force is necessary to defend himself against the disproportionate reaction by the other party.
In George Zimmerman’s case, it seems pretty clear that he found himself on his back and was having his head hit against a hard surface. We also know, based upon the funeral director’s statements, that Trayvon Martin did not have any noticeable injuries.
Thus the safe conclusion would be that Trayvon Martin had George Zimmerman in a compromising position that, in my opinion, would have been disproportionate to any perceived or real provocation made by George Zimmerman.
And if George Zimmerman did find himself on his back, was having his head hit against a hard surface, and felt his only choice was to use his weapon to defend himself against Trayvon Martin’s disproportionate response, then his use of deadly force to defend himself would have been excusable homicide.
As a result, the charge of Second Degree Murder would be subject to dismissal under Florida’s self-defense law.